Former New York City police officer Frank Serpico noted the price of waging anti-corruption campaigns: “The fight for justice against corruption is never easy. It never has been and never will be. It exacts a toll on our self, our families, our friends and especially our children.”
Those words are worth remembering as we turn our eyes toward Texas. Through the fury of presidential candidate debates, Capitol Hill gridlock and breaking news abroad, a state appellate court quietly dismissed an indictment against former Governor Rick Perry.
Its filing prompted widespread emotions on both sides — from some corners which perceived its filing as frivolous and invoked New York State Court of Appeals Chief Judge Sol Wachtler who opined that prosecutors could persuade a grand jury to “indict a ham sandwich.” Some believed Perry to have abused his power, as his veto withholding state funds cloaked a crime of coercion.
By design, the veto sought to compel the resignation of Rosemary Lehmberg of Travis County, which includes the Lone Star State’s government seat at Austin within its jurisdiction.
Perry was vexed that Lehmberg’s refusal to resign following her guilty plea for DWI and behavior while in police custody, events widely publicized and documented by police videos.
District attorney Lehmberg remains in office to this very day, while Rick Perry has since ended his term, abandoned his own presidential campaign and has pledged support for former Texas Solicitor General Ted Cruz. So what led to the indictment’s dismissal?
The court held that the indictment violated the separation of powers doctrine enumerated under the Texas State Constitution. Specifically, the opinion declared, “The governor’s power to exercise a veto may not be circumscribed by the Legislature, by the courts or by district attorneys (who are members of the judicial branch). When the only act that is being prosecuted is a veto, then the prosecution itself violates separation of powers.” So, the court dismissed the indictment count charging Perry with using his veto authority to coerce a public official.
The court also considered Governor Perry’s veto threat, holding that “public servants have a First Amendment right to engage in expression, even threats, regarding their official duties.”
The court then held that, “Many threats these public servants make as part of the normal functioning of government are criminalized” under the Texas statute. Therefore that part of the criminal law itself “is unconstitutionally overbroad in violation of the First Amendment.” Rick Perry has accrued some substantial legal fees, but the criminal case against him is now over.
While the court candidly said that threats are an inherent part of logrolling politics and conducting state business, a blurry line remains between that and the quid pro quo twilight zone of illegal conduct. A real challenge may well be to keep the ham sandwiches in picnic baskets where they belong and out of the courthouse. While state and federal constitutions vindicated Governor Perry here, prosecutions of public officials continue elsewhere; it never ends.
Yet there is still a greater force than the pains of defeat and the costs of victory, as a bright light still shines out through every dark uphill battle. Frank Serpico knew it, too: “In the end, I believe, as in my case, the price we pay is well worth holding on to our dignity.”
Submitted by Jason Bowns